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A COMPARATIVE STUDY OF THE AFRICAN AND THE EUROPEAN REGIONAL SYSTEMS FOR PROTECTION OF HUMAN RIGHTS: LESSONS FOR AFRICA

Abstract

African and European human rights systems are usually described as young-ineffective and old-effective respectively. Though plenty of scholarly works exists about the two systems, there is lack of comparative studies which tries to elicit similarities and differences between the two systems. Other than providing a descriptive account of the African system and categorizing it as young and ineffective, the existing literatures particularly failed to point-out lessons which can be drawn from experiences of the categorically effective European system. Therefore, by employing the Most Similar Systems Design of the comparative approach under the general qualitative framework, utilizing descriptive and exploratory techniques and based on documentary sources of information, this study examined the similarities and differences between the European and African human rights systems. The intention of the comparison was eliciting lessons which can be drawn from experiences of the European system to its African counterpart.

Experience of the European system clearly shows that conducive socio -economic and political conditions, enhanced participation of the Non-Governmental Organizations (NGOs) and the National Human Rights Institutions (NHRIs), vibrant role of the regional organizations, refined legal instruments and well structured and resourced regional human rights institutions all are vital for the functional efficacy of a regional human rights scheme. Therefore, for functional efficacy of the African human rights system to be enhanced, improvement in the socio-economic and political conditions at the continental level is a fundamental necessity. Secondly, the role of NGOs and NHRIs needs to be strengthened. Thirdly, the African Union (AU) bears, in similar mantra to the Council of Europe (CoE) and the European Union (EU), the responsibility of fathering the African system. Fourthly, legal regime of the African system, which basically revolves around the African Charter on Human and Peoples’ Rights (AChHPR), needs to be refined in due consideration of the loopholes such as the claw-back clauses and the ill-defined and/or sidelined rights. Lastly, the mandate, composition, funding, staffing, physical infrastructures and enforcement of the decisions of the African Commission on Human and Peoples’ Rights (ACoHPR) and the African Court on Human and Peoples’ Rights (ACtHPR) requires major overhauling. All in all, the experience of the European system provides important lessons which may help to enhance functional efficacy of the African human rights system.

CHAPTER ONE

INTRODUCTION

1.1 Background of the Study

The issue of human rights has traditionally remained within the preempted province of the state. Thus, the manner in which a state treated its own nationals and the people within its borders remained outside the realm of International law (Burgenthal, 1995: 3). But, this was gradually changed after the Second World War as evidenced by the signing of the United Nations (UN) Charter and the Universal Declaration of Human Rights (UDHR). Therefore, the modern international human rights law1, by implication the international protection of human rights, is a twentieth century development and closely associated to the adoption of the UN Charter in 1945.Another major development in the twentieth century regarding human rights is the evolution of the regional human rights systems. Regional human rights systems are schemes for promotion and protection of human rights within certain geopolitical region. Among the regional systems2, European system is the oldest one and the Council of Europe (CoE)3 is the first regional organization to enlist human rights as one of its foundational principles. And in 1950, the Convention for the Protection of Human Rights and Fundamental Freedoms (commonly called the European Convention, ECHRa) was adopted by the member states of the CoE.

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